MISHRA, J. - (1.) THE petitioner herein has moved this Court under article 226 of the Constitution of India for quashing the proceedings of the respondent in R. C. No. 11242 dated December 25, 1989 and for a consequential direction to reconsider its application dated December 18, 1989, presented before him under the rule 12 (7) of the Central Sales Tax (Registration and Turnover) Rules, 1957, read with section 55 of the Tamil Nadu General Sales Tax Act, 1959.
(2.) THE petitioner who is a public limited company engaged in the manufacture of cast iron and rough castings, was subjected to assessment of taxes under the provisions of the Central Sales Tax Act, 1956, for the assessment year 1987-88 and accordingly a demand for Rs. 1, 30, 899 was made on may 16, 1989, by the respondent, the Commercial Tax Officer, Adyar Assessment circle, Madras. When the petitioner was served with the recovery notice and realised that it was assessed as above, it presented an application on December 18, 1989, stating that the assessment be reopened to admit C forms which were not filed due to "sufficient cause" and consider also that it had incurred huge loss due to dislocation of business, etc. It is stated in the affidavit filed in support of the petition : "besides, the difficulty in collecting C forms from various out of State buyers was expressed. It was submitted that the failure to present C declaration was due to reasons beyond the control of the petitioner. THE petitioner also enclosed correspondence with the out of State buyers to show non-availability of C forms even with the out of State buyers. Simultaneously, copy of the assessment order dated May 16, 1989, allegedly passed for the 1987-88 (Central sales tax) was prayed for. " * However, when the said petition was presented, the respondent replied by R. C. No. 11242/87-88 dated December 25, 1989, thus : "with reference to your letter second cited, I am to inform that the pre-assessment notice dated March 27, 1989 and the assessment orders in C. S. T. No. 11242/87-88 dated May 16, 1989, were duly served to the appropriate person of your concern by the staff of this office on April 7, 1989 and June 10, 1989, respectively. THE name of the person on whom served is not legible in the records. As regards the grant of certified copy of the assessment order, a separate letter may be sent along with adequate stamp paper. THE final assessment was made with the available C forms produced and after issue of pre-assessment notice. THE assessment already made cannot be reopened. THE orders of the High Court, Madras, referred to in your letter cited is different from the instant case. As there is not provision to reopen the assessment already made in this case, the C forms now produced along with your letter cited are returned. THE dealers are requested to depute a responsible person with due identification to get back the C forms now filed. " * The petitioner has not disputed the liability to pay tax. It has, however, sought reopening of the assessment on the ground that the rate of tax on sales in the course of inter-State trade or commerce applied to it was different from the rate of tax on sales as envisaged in section 8 of the act. Section 8 (1) of the Central Sales Tax Act, 1956, states : "every dealer, who in the course of inter-State trade or commerce, - (a) sells to the Government any goodsor (b) sells to a registered dealer other than the government goods of the description referred to in sub-section (3) shall be liable to pay tax under this Act, which shall be four per cent of his turnover. "sub section (4) thereof, however, says : " The provisions of sub-section (1) shall not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner (a) a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed from obtained from the prescribed authorityor (b) if the goods are sold to the Government, not being a registered dealer, a certificate in the prescribed from duly filled and signed by a duly authorised officer of the Government : Provided that the declaration referred to in clause (a)is furnished within the prescribed time or within such further time as that authority may, for sufficient cause, permit. " * The corresponding rule with respect to section 8 (4) of the Central Sales Tax Act 1956, is rule 12 (7) of the Rules which reads : "the declaration in form C or form F or the certificate in form E-1 or form E-II, shall be furnished to the prescribed authority up to the time of assessment by the first assessing authority : Provided that if the prescribed authority is satisfied that the person concerned was prevented by sufficient cause from furnishing such declaration or certificate within the aforesaid time, that authority may allow such declaration or certificate to be furnished within such further time as that authority may permit. " * It can straightway be seen that rule 12 (7) of the rules has laid down a test different from the proviso to section 8 (4 ). This evidently is a glaring example of indifferent drafting of a rule under a taxation statute. However, I am not required to make any further comments about it for a Full Bench of this Court in State of Tamil Nadu v. Arulmurugan and company 1982 (51) STC 381 , has gone into this aspect and stated : "we would proceed now to advert to the different ways in which the discretion to allow further time for filing C forms is conferred by the proviso to section 8 (4) of the Act, on the one hand, and the proviso to rule 12 (7) of the Central Sales Tax (Registration and Turnover)Rules, on the other. The proviso in the Act simply says that the C forms shall be filed before the prescribed authority either within the prescribed time or 'within such further time as that authority may, for sufficient cause, permit'. As a matter of construction of the proviso in the statute, if there is sufficient cause, further time will have to be allowed. The proviso to the section does not insist that the assessee should establish before the prescribed authority that he was prevented by sufficient cause from filing the c forms in time. The'sufficient cause'spoken of by Parliament in section 8 (4)is sufficient cause which appeals to the mind of the authority concerned, and which enables it to allow further time without bothering about any onus on the assessee. The proviso to rule 12 (7), however, is a study in contrast. The power to allow further time under this rule is severely circumscribed by the language of its proviso. This proviso is more or less fashioned after section 5 of the limitation Act. Under the requirement laid down by the rule-making authority, the burden is on the assessee to make out sufficient cause by explaining why de did not file, and what prevented him from filing the C forms before the completion of the assessment. What is more, it is for the assessing authority to be satisfied about the existence of sufficient cause and its having prevented the assessee from filing the declarations within time. The difference between the two provisos is not merely one of language or of emphasis. The difference lies in the basic approach to the substance of the power to allow further time. Under the statutory provision, the prescribed authority can allow further time for sufficient cause, without bothering to see whether anything or any occurrence prevented the assessee from filing the C forms within time, and whether the assessee could have filed the C forms within time even in the position in which he actually found himself. The rule, however, cases the burden on the assessee and makes the position more difficult for him to invoke the power successfully. It also narrows down the discretion of the authority concerned. The question, however, is which is to be the master, the proviso in the section or the proviso in the rule " There can be no doubt about the legal position that a rule cannot prevail against the statute, by being repugnant to the statute. A study of the structure of the proviso to section 8 (4) shows how parliament's peculiar preferences had worked in this regard. While Parliament was content to leave to the rule-making authority, namely, the Central government, the task of prescribing a rule laying down the time-limit for furnishing C forms, the power to allow further time, however, was not relegated to the Rules, but deliberately enacted into the very text of the proviso to section 8 (4 ). In this statutory format, with Parliament clearly expressing its mind on the subject, the Central Government must be held to possess no authority whatever to make any rule as respects the power to allow further time, let alone prescribe the conditions subject to which any such power could be exercised. In this sense, the proviso to rule 12 (7) must be held to be ultra vires the rule-making power, to the extent that it is inconsistent with, or lays down tests or standards different from, the proviso to section 8 (4 ). It is quite clear that the proviso to rule 12 (7) is both superfluous and badly drafted. The indifferent drafting is all the more regrettable when we remember the legislative history which brought into the statute book the proviso to section 8 (4) as a necessary part of the taxing enactment. " * Thus, while the proviso to rule 12 (7) has to be ignored, as a consequence of a bad draftsmanship, the main body of the rule where a time-limit has been fixed has to be upheld as valid as it operates within the statutory prescription in section 8 (4) wherein it is that "provided that the declaration referred to in clause (a) is furnished within the prescribed time or within such further time as that authority may, for sufficient cause, permit" * . The time-limit indicated in rule 12 (7) is up to the time of assessment. If the declaration referred to in clause (a) of section 8 (4) was not filed up to the time of assessment, that is to say, until the assessment order was handed over, for "sufficient cause" even after the assessment the assessing authority is empowered to permit the assessee to furnish such declaration or certificate within such further time as fixed by him. Although considered as an ancillary argument, non the less, I have the advantage of the opinion of the Full Bench in the case of State of Tamil Nadu v. Arulmurugan and Company 1982 (51) STC 381 (Mad.) on the subject, wherein it is stated : "we do not think there is any room for the perplexity given expression to by the learned Government Pleader. Given the assessing authority's undoubted power to allow further time for C forms to be filed on sufficient cause, the rest of it is mere procedure or follow up action. Where the assessing authority is satisfied, in a given case, about the existence of sufficient cause, it must necessarily be followed up by appropriate action, such as reopening the assessment already completed. Perhaps, the requisite corrective action can be taken by invoking the assessing authority's statutory power of rectification of mistakes. Even otherwise, the implementation, in appropriate cases, of the power to allow further time cannot be withheld on the excuse that there is not express provision either in the statute or in the statutory rules for reopening the assessment. When the power is there and the facts are there demanding its exercise, the implementation must be done as a matter of course, on the doctrine of implied or ancillary powers. Where there is a power, and where there is a will, there will be a way. " * Learned counsel for the State has, however, pointed out that the observations in Full Bench decision that the assessing authority has the statutory power of rectification of mistakes and other observations about these provisions are obiter dicta, and, if accepted as a doctrine of implied or ancillary powers, would mean recognising in a statutory authority a power to review a final assessment order, which power shall always operate as a weapon to undo any assessment order. I would have give some thought to this objection as it is well-settled that no statutory authority or Tribunal can have the power to review its order unless such power is conferred by a statute, but I am, however, not required to examine in this case, the extent of the ancillary powers that may be availed to the assessing authority. Section 8 (4)itself has recongised the power of the assessing authority to permit filing of the declarations and forms referred to in clause (a) thereof, within such further time as that authority may, for sufficient cause, permit. I have already noted that rule 12 (7) has prescribed the time-limit for filing the declaration referred to in clause (a) of section 8 (4) of the Act and that the assessee can file the declaration referred to in clause (a) of section 8 (4) or in rule 12 (7) until the time of assessment by the first assessing authority. The expression "first assessing authority" under rule 12 (7) indicates that the appellate authorities also are recognised as assessing authorities. It means that the first assessing authority, as well as the appellate authority can for sufficient cause extend the time for filing the declaration. The Full bench was considering whether an appellate authority has the same power as the assessing authority to allow further time for accepting C forms and not how and by what process the assessing authority himself could after the completion of the assessment extend the time for filing the form. I am of the opinion that the power which has been noticed to exit in the appellate authority will be available to the assessing authority also to allow further time for accepting C forms or other forms mentioned in clause (a) of sub-section (4) of section 8 of the Act.
(3.) ADVERTISING to the impugned order, it is clear that the assessing authority found that there is no provision to reopen the assessment already made and that is why he turned down the request of the petitioner to reopen the assessment. There he has clearly fallen in error. The petitioner is entitled to seek reopening of the final assessment. The only thing that will determine whether the assessment will be reopened or not is the existence of "sufficient cause" to the satisfaction of the assessing authority. The assessing authority was, however, required to consider the case and to say whether the cause in his opinion was sufficient to reopen the assessment or not. In view of my conclusion above, this writ petition is allowed and the impugned order is quashed. The matter is remitted to the respondent for rehearing and disposal in accordance with law. No costs.;